Domenghini v. Evans

• Citation: 70 Cal.Rptr.2d 917,61 Cal.App.4th 118
• Decision Date: 28 January 1998
• Docket Number: No. B113169,B113169
• Court: California Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 810, 98 Daily Journal D.A.R. 1011 Dale DOMENGHINI, Plaintiff and Appellant, v. Gary EVANS et al., Defendants and Respondents.

Page 917

70 Cal.Rptr.2d 917

61 Cal.App.4th 118, 98 Cal. Daily Op. Serv. 810,

98 Daily Journal D.A.R. 1011

Dale DOMENGHINI, Plaintiff and Appellant, v. Gary EVANS et al., Defendants and Respondents.

No. B113169.

Court of Appeal, Second District, Division 6, California.

Jan. 28, 1998.

John W. Belsher; Belsher & Becker, San Luis Obispo, for Plaintiff and Appellant.

McCarthy & Kroes; Jaye Heybl,Santa Barbara, for Defendants and Respondents.

YEGAN, Associate Justice.

Dale Domenghini appeals from the judgment entered after the trial court granted respondents Gary Evans and Jane Evans' (Evans) motion for summary judgment. Domenghini was injured during a cattle roundup, when a large calf that he and two other men were wrestling to the ground hit its head against Domenghini's leg. The calf is owned by the Evanses. The trial court granted the Evanses' motion for summary judgment after concluding that Domenghini's action was barred by the doctrine of primary assumption of risk. We affirm.

Domenghini was injured in 1995 during a cattle roundup held on a ranch that is owned by his grandmother and mother. Domenghini helps to maintain the ranch and, since 1973, has run some cattle on it. The Evanses lease the right to run cattle on the ranch. Roundups are conducted annually, to brand, castrate, dehorn and vaccinate calves. Domenghini participated in the 1995 roundup because it involved his own cattle, as well as cattle belonging to the Evanses. He was not an employee of the Evanses, testifying instead that it "would be fair[ ]" to characterize the roundup as "a team effort [.]" Domenghini testified that he was at the roundup because he "had some cattle to work and we've always in the past worked together."

During a roundup, adult cattle and calves are herded into separate corrals and the calves are individually restrained so they can be branded, castrated, vaccinated and dehorned. Calves may be restrained using a mechanical chute, or by horsemen who rope the calf, so that other workers, called "muggers," can throw it to the ground. According to Domenghini, it is common to "get hit and kicked and shoved around[,]" while trying to restrain a calf with horsemen and ropes. He testified: "You try not to get hit, but it's very common that they throw their heads around."

At the 1995 roundup, as in previous years, the calves were restrained by horsemen, "muggers" and ropes. Domenghini believed this method was used because it made the roundup "more of a fun event ...," like a rodeo. Domenghini was not riding or "mugging" that day. Instead, he was involved in branding and castrating.

Domenghini was injured late in the afternoon, as two men tried unsuccessfully to throw an exceptionally large calf to the ground. The men called for help and Domenghini joined the effort. When they got the calf on the ground, it was Domenghini's job to remove a rope from around the calf's head and use it to restrain the calf's front feet. This was very difficult because the calf was kicking and throwing its head. After about three minutes, Domenghini was able to lift the calf's right foot into the rope. During that process, the calf threw its head back and struck Domenghini's leg. Gary Evans was not present when the injury occurred. Domenghini could not recall whether Jane Evans was present at the time.

The blow caused severe pain and swelling in the leg. Domenghini sought medical treatment for the injury the next day. He received some pain medication and was told to elevate his foot. Domenghini had to leave the leg elevated for a period of weeks and testified that he continues to suffer from pain, numbness and weakness in that leg.

We review a summary judgment de novo, to determine whether triable issues of material fact exist. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19, 17 Cal.Rptr.2d 356.) The question here is one of law, i.e., whether the Evanses had a duty to protect Domenghini from injury during the roundup. (Knight v. Jewett (1992) 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The trial court properly concluded that the doctrine of primary assumption of risk barred Domenghini's action.

As the Court explained in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, primary assumption of risk bars the recovery of damages for injuries caused by the plaintiff's participation in an activity, "where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury...." (Id. at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696; see also, Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 664, 20 Cal.Rptr.2d 148.) The doctrine bars suit against a participant in a sporting event, unless the participant "intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport. [Citation.]" (Knight v. Jewett, supra, 3 Cal.4th at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696; see also Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068, 68 Cal.Rptr.2d 859, 946 P.2d 817; Herrle v. Estate of Marshall (...